Channel 10 7pm Project Interview with an accredited criminal law specialist and Partner of Nyman Gibson Miralis, Drink Driving Lawyer Sydney talking about low range drink driving charge dismissed in the case of Jasmin Henley. The program aired at 7pm 4 August 2010

Below is an unofficial transcript of that TV appearance. The weblink to the program is :7PM Project

Full acknowledgment is made to channel 10 and to the 7pm Project

Carrie Bickmore: Joining us with his explanation is criminal defence lawyer and former police prosecutor. Now, what do you think? Can you ever excuse drink driving?

Solicitor: I think you can. There has to be circumstances where people, particularly in the low range, are given extended leniency under the relevant provisions which exist right across Australia. Sometimes people make a mistake, there’s an opportunity for magistrates to say ‘righto don’t do it again’. There are also statutory defences.

Carrie Bickmore: It’s not 0.5-ish. It’s 0.5 isn’t it?

Solicitor: Well it’s from 0.5 to 0.8 is your low range and this person was 0.67. Many people don’t even realise that they’re over the limit at 0.67. They’re not flouting the law, they simply made a mistake.

Dr Andrew Rochford: So does that mean that the law simply doesn’t work? Are we going to get to the point where we will have to say ‘if you’re going to drive you don’t drink and if you’re going to drink, you just can’t get behind a wheel’? Because we just can’t use an excuse of a postcode or as you said in the beginning, that there is an excuse, surely where you live is just not good enough.

Solicitor: I don’t think where you live on its own is good enough but where you live is simply a factor to be taken into account. Are you a person with no criminal record? Are you person who has a great traffic record over a long period of time? How old are you? What’s your mental condition? Are there any other circumstances that could be put before the court? It’s not simply a matter of postcode and I don’t think that would have the ultimate say in this particular decision.

Dr Andrew Rochford: But there’s a reason why we have random breath testing because if you drink and you drive, your risk of having a car accident and hurting somebody else goes up. That’s the whole point of it, if we start putting in rules for certain people, doesn’t that break down that entire reason for having that law?

Solicitor: I think that if there were rules just for certain people, yes it would break down of that law, but this is an isolated case. It is to be seen on its own, it’s not binding on anyone else, and it’s not going to influence any other magistrate. Anyone turning up before the courts and saying ‘Hey I live a particular distance from work and she got off so I should get off’ is probably having disregard for the law and the magistrate will deal with them appropriately as this senior magistrate did on this occasion. The Magistrate made the right decision.

Dave Hughes: Are we going to have to change the ads though because the ads I know are ‘drink driving and you’re a bloody idiot and you lose your licence’, should they change it to drink, drive and you’re a bloody idiot unless you pretty 27 year old who lives in an outer suburb? I mean, I feel it’s ridiculous.

Solicitor: Well I don’t think it’s entirely ridiculous, yes I think people have to be given sometimes benefit of the doubt that they’re a decent person, they’ve made a mistake and the law without compassion is an ass and fortunately the law on this occasion had compassion.

Angela Bishop: But, it does send a message that it’s alright to have a few too many, get behind the wheel as long as you live in woop-woop.

Solicitor: No I don’t think that’s quite right, I think the people that drink say 2 drinks, it may affect me in a particular way, it may affect you in another way. There is a gender bias, which was correctly mentioned by the magistrate. Sometimes people of smaller stature are affected more easily by alcohol and that might have happened here. People don’t realise that over 2 drinks they may be over the limit, other people may have 3 or 4 drinks and not be over the limit. Everyone is different, people quite often in drink driving matters that I have seen over the years, they don’t realise that they’re over the limit; they’re legitimate when they say that and this may have been the case here. Anyone who deliberately says that they live in woop-woop and I’m going to drink and drive, they’re making the wrong decision. Drink driving is not to be condoned but in certain circumstances, it can be excused.

Carrie Bickmore: It will be interesting to see if it does set a precedent. Thank you for joining us tonight.